The World Intellectual Property Organization patent law committee meeting this week will convene two half-day conferences, one on cooperation between patent offices, and the other on publicly accessible databases on patent information on medicines and vaccines. Other topics for discussion will be patents and health, confidentiality of communications between patent applicants and their advisors, quality of patents, and the research exception.

WIPO headquarters

The 29th session of the WIPO Standing Committee on the Law of Patents (SCP) is meeting from 3-6 December.

As agreed during the last session of the SCP in July, the committee will address five topics, which have been the same for several years: Exceptions and limitations to patent rights; quality of patents, including opposition systems; patents and health; confidentiality of communications between patent advisors; and transfer of technology (IPW, WIPO, 13 July 2018).

Two half-day conferences are scheduled during the week, as noted in the agenda [pdf] of the session. One conference will focus on the cooperation between patent offices in search and examination, including sharing of information concerning the corresponding foreign applications and grants. The other will explore publicly accessible databases on patent information status and data, on medicines and vaccines.

Patents and Access to Medicines

Besides the half-day conference on publicly accessible databases on patent information status and data, on medicines and vaccines, according to decisions from the July session of the SCP, delegates are expected to continue discussions on several proposals made by delegations during the July session.

As agreed at the July session, the conference is expected to take into consideration items contained in a 2016 African Group proposal [pdf] for a WIPO Work Program on Patents and Health. This follows and update a previous 2011 proposal [pdf] jointly submitted by the African Group and the Development Agenda Group.

The 2016 proposal suggests two studies, one of them “leading independent experts to examine the challenges faced by developing countries and LDCs [least-developed countries] in incentivizing innovation in healthcare technologies where patents have proved to be an insufficient motivator.”

The other would examine the challenges and opportunities faced by developing countries and LDCs in using licences for healthcare technologies. That would include an examination of the extent to which countries use exhaustion of rights to allow parallel trade in medicine; and an analysis of the interface of competition law and patent rights in the context of pharmaceuticals in different countries. The proposal also suggest the development of an international patent register for essential medicines.

The SCP is also expected to continue discussing a proposal [pdf] (SCP/28/9) by Brazil, Canada and Switzerland, later joined by Argentina, proposing a review of existing research on patents and access to medical products and health technologies.

The proposal suggests that the WIPO secretariat work in consultation with the World Health Organization and the World Trade Organization “to take advantage of the complementary subject matter expertise and pre-existing collaborative relationship of these organisations.

The topics of the studies reviewed would include the relationship between patents and affordability and availability of medical products and health technologies; and the role of the patent system, including patent quality mechanisms, in incentivising and promoting the development of new medicines and health technologies to address the global disease burden.

Also to be further discussed is a proposal [pdf] (SCP/28/10) by Argentina, Brazil and Switzerland, tabled this week, suggesting a regular update on publicly accessible databases of patent status information concerning medicines and vaccines.

Still on the table is a 2011 US proposal [pdf] suggesting several studies. Weakening patent protection for innovative medicines is not a productive approach to improving availability of health care, the proposal says. Although most medicines on the WHO Model List of Essential Medicines “are not protected by patents, their availability in many markets is limited, it notes,” adding “by analyzing the reasons why unpatented medicines do not reach the intended patients, it is possible to determine what are the factors not related to patents that impede their availability.”

The proposal suggests two studies: one on the positive impact of patent systems in providing lifesaving medicines to developing countries; and another on the availability of lifesaving medicines that are not protected by patents, and the reasons for their lack of availability.

Research Exception

The WIPO secretariat also prepared a draft reference document [pdf] on exceptions and limitations, in particular on the research exception for this session of the SCP. According to the document, WIPO made use of information submitted by WIPO member states as well as other information collected through the SCP activities. The document includes an overview of the research exception, objectives and goals of the research exception, and research exception and international legal framework.

Confidentiality of Communication

As part of the documents for this session, there is an updated version [pdf] of a compilation of laws, practices and other information relating to the confidentiality of communications between clients and their patent advisors.

It is often the case, the document states, that “an applicant mandates a local patent advisor in his country of origin to assist preparation and prosecution of a patent application according to the national rules and practices.” Foreign patent advisors in different countries might be used should the applicant decides to file patent overseas. It may happen, when the applicant or patentee or a third party becomes a party to patent litigation, courts may order a party to disclose documents containing confidential communication between the party and their patent advisor, including that of their local patent advisor in their country of origin, the document explains.

“While the party might be protected by the rules and practices on the confidentiality of communications with his/her patent advisors in his/her country of origin, such confidentiality relationship might not be recognized and protected in foreign countries where litigations take place,” it says.

Technology Transfer

As requested at the last session of the SCP, the WIPO secretariat prepared a compilation [pdf] of information on patent law provisions that contributed to effective transfer of technology, including sufficiency of disclosure.

The WIPO secretariat also prepared a compilation [pdf] of information on patent law provisions that contributed to effective transfer of technology, including sufficiency of disclosure. The document includes information about Canada, Chile. China, Colombia, Czech Republic, France, Uganda, United Kingdom, and the United States.

Quality of Patents and New Technologies

The SCP next week is also expected to further discuss a proposal [pdf] put forward by Spain in June 2016. The proposal suggests conducting studies on new technologies and patentability. The studies would address issues such as blockchain and artificial intelligence.

“Artificial intelligence presents a series of problematic situations that patent law will have to address sooner or later, as the current rules are not prepared for such a disruptive change,” the proposal says.

Among the questions that studies would seek to answer are “what will happen to the people whose data are used for the development of patented artificial intelligence,” and will they be entitled to any financial compensation. Another question is “will the current patent legal life span in this sector remain adequate?”

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